AN INTRODUCTORY DISCUSSION OF EASEMENTS

March 26, 2018
By
The Jones Law Firm

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If you own land in the State of Texas, chances are you have an easement
on your property. Easements typically grant another person, or entity,
a limited right to enter upon and use another's property for a specific
purpose in a specific location. While the property owner still owns the
land on which the easement is located, the property owner is often times
restricted from using his/her land in any way that could interfere with
the easement holder's use of the same.

Easements come in many forms. A pipeline easement may grant a pipeline
company the right to lay and maintain a pipeline on someone's property;
an access easement may grant a neighbor the right to drive or walk across
an adjacent property for the purposes of accessing their own property;
or a public utility easement may allow utility companies the right to
lay and maintain water, phone, electrical, or fiber optic lines.

I. What is an easement?

An easement is a non-exclusive non-possessory property interest under which
the owner of the easement has certain and limited rights to use or benefit
from land owned by another and may only exclude others from said property
if they interfere with the easement holder's use of the same.

Land burdened by an easement is called the "Servient Estate,"
while the land or person benefited by the easement is known as the "Dominant
Estate."

II. Types of Easements:

Depending on the nature of the dominant estate (the holder of the easement),
the easement can take
two forms:

a)
Easement Appurtenant: If the easement benefits a specific piece of land (typically an adjoining
property, but not necessarily) the easement is said to be "APPURTENANT."
Easements appurtenant are affixed to the land itself and will pass to
subsequent owners of the property without any specific assignment.

b)
Easement in Gross: If the easement does not benefit a particular piece of land, but rather
a person or entity, the easement is said to be "IN GROSS." Easements
in gross are typically non-transferable or assignable unless specified
in the easement document or consented to by the owner of the servient estate.

EXAMPLE #1: Property B (Dominant Estate) has an easement across Property A (Servient
Estate) granting a right of access to Property B (e.g. a driveway). If
the above access easement was created at the time Property B was severed
from Property A, for the purposes of allowing access to Property B (typically
when landlocked), the access easement is an easement appurtenant. If Property
B is not landlocked and the access easement was granted by the owner of
Property A to allow a specific person or entity a right of access across
Property A for the purposes of gaining entry to Property B, the easement
may be an easement in gross.

c) Within the confines of the aforementioned easement types, there are
AFFIRMATIVE EASEMENTS, NEGATIVE/RESTRICTIVE EASEMENTS, PRIVATE EASEMENTS,
and PUBLIC EASEMENTS.

i)
Affirmative easements (most common): An affirmative easement grants the holder of the easement
the right to "do something" on another's property. In the
scope of Example No. 1, the access easement is an affirmative easement.

ii)
Negative easements or restrictive easements (less common): A negative easement or restrictive easement prevents the
owner of the servient estate from "doing something." Conservation
easements, which preserve natural areas by prohibiting development, are
a common example of a negative easement.

iii)
Private easement: A private easement is typically owned or held by one or a limited number
of persons or parties.

iv)
Public easement: A Public easement is one that benefits or grants the rights under the
easement to a large group of individuals or the public in general.

III. The Granting of an Easement – EXPRESS EASEMENTS:

Primarily all easements we encounter on a day to day basis are known as
EXPRESS EASEMENTS. Express easements are essentially contracts entered
into between the owners of the dominant and servient estates outlining
the terms by which the owner of the dominant estate may utilize the servient
estate for the benefit of the dominant estate. Express easements are commonly
created in one of three ways:

(1) Granted by a deed;

(2) Reserved by a deed; or

(3) Created in another legal instrument, such as a specific easement dedication,
identified within a subdivision plat, or identified within a recorded
set of subdivision restrictions.

Because express easements are contracts governing the use of real property,
express easements are subject to the basic principles of contract construction, the
Statue of Frauds, and
Deed Formalities.

a)
Statute of Frauds (Except for one < 1yr.): In Texas, all conveyances of interests in
real property are subject to the Statute of Frauds, which, simply put,
requires the conveyance to be declared in writing for it to be legally
binding on the parties.

Definition of Statute of Frauds: No estate of inheritance or freehold, or for a term of more than one
year, in lands and tenements, shall be conveyed from one to another, unless
the conveyance is declared in writing.

b)
Deed Formalities: The deed or instrument conveying the property or easement must be signed
and notarized. Furthermore, in order for the instrument to be binding
on subsequent purchasers of the dominant and servient estates, the instrument
must be recorded in the county where the servient estate is located. While
an unrecorded easement may still be enforceable, the easement may be nullified
by a "bona fide purchaser" of the property if the property is
sold for value and the subsequent purchaser has no notice (constructive
or otherwise) of the unrecorded easement.

If an easement agreement abides by the aforementioned requirements, the
rights of all parties to the agreement are typically secure. However,
issues can arise after the owners of property agree to an easement if,
at the time the easement is created, the parties either fail to reduce
the agreement to writing and/or fail to record that writing after its
execution. This issue brings up the discussion of how can an easement
be enforced or defended if it has not been reduced to writing or properly
recorded. In such cases, oftentimes, Courts must decide whether an enforceable
easement exists under the principles of an (1) Implied Easement, (2) Prescriptive
Easement, (3) or Easement by Estoppel; the discussion of which, however,
is beyond the scope of this discussion.

DISCLAIMER: The foregoing information is not legal advice and is general in nature
and not applicable to all situations. The reader should not rely on these
general statements and should consult with knowledgeable persons before
taking any actions.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.